# C_2019025EN.01001601.xml

| 21.1.2019 | EN | Official Journal of the European Union | C 25/16 |
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21.1.2019

EN

Official Journal of the European Union

C 25/16

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Request for a preliminary ruling from the Giudice di pace di L’Aquila (Italy) lodged on 1 October 2018 — Gabriele Di Girolamo v Ministero della Giustizia

(Case C-618/18)

(2019/C 25/19)

Language of the case: Italian

Referring court

Giudice di pace di L’Aquila

Parties to the main proceedings

Applicant: Gabriele Di Girolamo

Defendant: Ministero della Giustizia

Questions referred

| 1. | In the light of the case-law of the Court of Justice of the European Union concerning the liability of the Italian State for manifest infringement of Community law by courts adjudicating at last instance in the judgments [of 30 September 2003, Köbler, C-224/01, EU:C:2003:513; of 13 June 2006, Traghetti del Mediterraneo, C-173/03, EU:C:2006:391 and of 24 November 2011, Commission v Italy, C-379/10, EU:C:2011:775], must the general principles of European Union law presently in force concerning legal certainty, the protection of legitimate expectations, procedural equality, effective judicial protection, the right to an independent court or tribunal and, more generally, the right to due process laid down in Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that those provisions and the cited case-law of the Court of Justice preclude a Member State from adopting, to benefit itself or its public authorities, as in the present case, legislation such as that introduced by Law No 18/2015, with the declared intention of implementing the cited decisions of the Court of Justice, but with the essential objective of frustrating the effects thereof and affecting domestic jurisdiction, which, in the new version of Article 2(3) and (3bis) of Law No 117 of 13 April 1988 on the civil liability of judges, introduces a notion of liability for intentional fault or serious misconduct ‘in the event of manifest infringement of this law or the law of the European Union? That national legislation gives the national magistrate a choice — and the fact that it is made in any event gives rise to civil liability and liability to disciplinary action in relation to the State in cases in which the public authority itself is a substantive party —, as in the present case, of either infringing national legislation by disapplying it and applying European Union law, as interpreted by the Court of Justice, or infringing European Union law by applying the provisions of national law precluding effective protection and incompatible with Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 of the framework agreement on fixed-term work implemented by Directive 1999/70 and Article 31(2) of the Charter of Fundamental Rights of the European Union, as interpreted by the case-law of the Court of Justice in the judgments [of 1 March 2012, O’Brien, C-393/10, EU:C:2012:110; and of 29 November 2017, King, C-214/16, EU:C:2017:914]; |
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1.

In the light of the case-law of the Court of Justice of the European Union concerning the liability of the Italian State for manifest infringement of Community law by courts adjudicating at last instance in the judgments [of 30 September 2003, Köbler, C-224/01, EU:C:2003:513; of 13 June 2006, Traghetti del Mediterraneo, C-173/03, EU:C:2006:391 and of 24 November 2011, Commission v Italy, C-379/10, EU:C:2011:775], must the general principles of European Union law presently in force concerning legal certainty, the protection of legitimate expectations, procedural equality, effective judicial protection, the right to an independent court or tribunal and, more generally, the right to due process laid down in Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that those provisions and the cited case-law of the Court of Justice preclude a Member State from adopting, to benefit itself or its public authorities, as in the present case, legislation such as that introduced by Law No 18/2015, with the declared intention of implementing the cited decisions of the Court of Justice, but with the essential objective of frustrating the effects thereof and affecting domestic jurisdiction, which, in the new version of Article 2(3) and (3bis) of Law No 117 of 13 April 1988 on the civil liability of judges, introduces a notion of liability for intentional fault or serious misconduct ‘in the event of manifest infringement of this law or the law of the European Union? That national legislation gives the national magistrate a choice — and the fact that it is made in any event gives rise to civil liability and liability to disciplinary action in relation to the State in cases in which the public authority itself is a substantive party —, as in the present case, of either infringing national legislation by disapplying it and applying European Union law, as interpreted by the Court of Justice, or infringing European Union law by applying the provisions of national law precluding effective protection and incompatible with Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 of the framework agreement on fixed-term work implemented by Directive 1999/70 and Article 31(2) of the Charter of Fundamental Rights of the European Union, as interpreted by the case-law of the Court of Justice in the judgments [of 1 March 2012, O’Brien, C-393/10, EU:C:2012:110; and of 29 November 2017, King, C-214/16, EU:C:2017:914];

| 2. | If Question 1 is answered in the affirmative and having regard to the position adopted by the Italian Constitutional Court [in judgment] No 269/2017 of 14 December 2017 following the judgment [of the Court of Justice of 5 December 2010, M.A.S. and M.B., C-42/17, EU:C:2017:936], in the light of Articles 31(2) and 47 of the Charter of Fundamental Rights of the European Union, Article 267 TFEU and Article 4 of the EU Treaty, can the decision which the Court of Justice has to adopt in the present case, finding that Article 2(3) and (3bis) of Law No 117 of 13 April 1988 is incompatible with EU law, in the main proceedings in which the defendant is a public authority of the State, be treated by the national court as a provision of European Union law of direct effect and application, thus allowing the national precluding provision to be disapplied?’ |
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2.

If Question 1 is answered in the affirmative and having regard to the position adopted by the Italian Constitutional Court [in judgment] No 269/2017 of 14 December 2017 following the judgment [of the Court of Justice of 5 December 2010, M.A.S. and M.B., C-42/17, EU:C:2017:936], in the light of Articles 31(2) and 47 of the Charter of Fundamental Rights of the European Union, Article 267 TFEU and Article 4 of the EU Treaty, can the decision which the Court of Justice has to adopt in the present case, finding that Article 2(3) and (3bis) of Law No 117 of 13 April 1988 is incompatible with EU law, in the main proceedings in which the defendant is a public authority of the State, be treated by the national court as a provision of European Union law of direct effect and application, thus allowing the national precluding provision to be disapplied?’

| 3. | If Question 1 is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a permanent worker indistinguishable from a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70, (1) where the judicial functions performed are the same but the selection procedure for performing the functions differ between ordinary judges (based on qualifications and tests with permanent employment and substantial permanent protection from dismissal, other than in rare cases of grave breaches of duty) and Giudici di pace (based on qualifications with fixed-term employment, renewable on a discretionary basis after a favourable periodic review by the by the Consiglio superiore della magistratura (the Supreme Council of the Judiciary) and immediately revocable in the event of an unfavourable review by the Giudice onorario (honorary judge)? |
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3.

If Question 1 is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a permanent worker indistinguishable from a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70, (1) where the judicial functions performed are the same but the selection procedure for performing the functions differ between ordinary judges (based on qualifications and tests with permanent employment and substantial permanent protection from dismissal, other than in rare cases of grave breaches of duty) and Giudici di pace (based on qualifications with fixed-term employment, renewable on a discretionary basis after a favourable periodic review by the by the Consiglio superiore della magistratura (the Supreme Council of the Judiciary) and immediately revocable in the event of an unfavourable review by the Giudice onorario (honorary judge)?

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(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

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